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Machavarapu Srinivasa Rao and Another Vs. the Vijayawada, Guntur, Tenali, Mangalagiri Urban Development Authority and Others

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Machavarapu Srinivasa Rao and Another Vs. the Vijayawada, Guntur, Tenali, Mangalagiri Urban Development Authority and Others Machavarapu Srinivasa Rao and another Vs. The Vijayawada, Guntur, Tenali, Mangalagiri Urban Development Authority and others J U D G M E N T G.S. Singhvi, J. 1. Leave granted. 2. The questions which arise for consideration in this appeal are whether respondent No.1 – the Vijayawada, Guntur, Tenali, Mangalagiri Urban Development Authority had the jurisdiction to grant permission to respondent No.3 – Sri Venkateswara Swamivari Alaya Nirmana Committee for construction of temple at the site of which land use was shown as recreational in the Zonal Development Plan approved by the State Government and whether the Division Bench of the High Court of Andhra Pradesh was justified in refusing to nullify the decision taken by respondent No.1 by assuming that it was only a case of allotment of site. 3. Respondent No.1 was constituted under Section 3(1) of the Andhra Pradesh Urban Areas (Development) Act, 1975 (for short, `the Act’) to promote and secure the development of different parts of the four towns, namely, Vijayawada, Guntur, Tenali and Mangalagiri. In 1978, respondent No.1 acquired 91 acres land at Chenchupet, Tenali and prepared a layout plan for development. As per the approved plan, 10 sites were earmarked for parks. These included an area of 75 cents comprised in Town Survey No.2/3, Block No.1, Ward No.1, Chenchupet. 4. The Master Plan of Tenali town was approved by the State Government vide G.O.Ms. No.969 dated 21.11.1978 and the Master Plan of the urban area of respondent No.1 was approved vide G.O. Ms. No.144 dated 3.3.1988. After about 15 years, the State Government decided that the Master Plans be replaced by a comprehensive Zonal Development Plan. For this purpose, the Vice Chairman of respondent No.1 was authorized to take necessary steps. Thereafter, the area covered by the urban region of respondent No.1 was divided into 23 planning zones and it was decided that Zonal Development Plans be prepared on priority basis in respect of 15 zones including Tenali zone. The draft Zonal Development Plan of Tenali was published in the local newspapers and objections/suggestions were invited from the public. In the final Zonal Development Plan of Tenali town, which was approved by the State Government vide G.O. Ms. No.689 dated 30.12.2006, land use was divided into the following 9 (main) categories: a. “1. Residential use Zone b. 2. Mixed Residential use Zone. c. Commercial use Zone [Local, Central and General Commercial use d. Industrial use Zone e. Public and Semi public use Zone f. Recreational use Zone. g. Transportation and Communication use Zone (Roads, Railways, Airports, Bus Depots and Truck Terminals) h. Agricultural use zone. i. Water Bodies.” 5. Respondent No.3, which was registered as a society in March, 2009 under the Andhra Pradesh Societies Registration Act, 2001, submitted an application dated 28.5.2009 to respondent No.1 for grant of permission to construct a temple at the site which formed part of Town Survey No.2/3. After considering the 4objections received from the public, respondent No.1 passed resolution dated 4.2.2010 for grant permission to the Residents Welfare Association to construct Sri Venkateswara Swamy Vari Temple. In furtherance of that decision, Vice-Chairman of respondent No.1 issued order dated 30.3.2010, the relevant portions of which, as contained in Annexure P-4 of the SLP paper book, are extracted below: “Therefore the `Residential Welfare Association’ is permitted to construct Sri Venkateswara Swamy Vari Temple in the earmarked site and orders are issued accordingly. The said `Residential Welfare Association’ Alaya Committee is directed to follow the following conditions: a. The said Association has no ownership rights on the site earmarked for Religious center in the IDSMT Scheme. b. The said Association has right to construct the temple only. The complete rights on the site and building shall rest with the UDA only. c. The Association should not make use of allotted site for other purposes except for the construction of temple. d. Temple should be constructed within three years from the date of issue of this order. Or else the UDA is having every right to take over the site along with the incomplete building. e. In the said site activities pertaining to Temple alone should be conducted and it should not be used for commercial and business purposes. f. The meetings and activities of Alaya Committee should be conducted as per laws. g. The conditions made by the Government/VGTM UDA from time to time shall be in force. h. If the conditions are violated the said site along with the building shall be taken over.” After about one month and ten days, the Vice Chairman of respondent No.1 issued amended order dated 10.5.2010 in the name of respondent No.3 because by mistake permission for construction of temple was issued in favour of the Residents Welfare Association, which had not even submitted application. 6. Having succeeded in convincing respondent No.1 to grant permission for construction of temple at the site, which did not even belong to it, respondent No.3 approached the State Government for change of land use from recreational (park) to public/semi public. Simultaneously, the Vice Chairman of respondent No.1 addressed letter dated 15.6.2010 to the Principal Secretary to Government, Municipal Administration and Urban Development Department for change of land use. He pointed out that in the Integrated Development of Small and Medium Towns Scheme, 1981 (for short, `the 1981 Scheme’) 15 cents land comprised in Town Survey No.2/3 was reserved for religious center but, by mistake the same was shown as earmarked for recreational use in the Zonal Development Plan. 7. While respondent Nos. 1 and 3 were making efforts for securing an order from the State Government for change of land use, the appellants filed writ petition 6by way of public interest litigation questioning the decision of respondent No.1 to sanction construction of temple. They pleaded that the Zonal Development Plan prepared by respondent No.1 and approved by the State Government is statutory in character and land covered by the Zonal Development Plan cannot be used for a purpose other than the one specified in the Plan and respondent No.1 did not have the jurisdiction to sanction construction of temple at the site of which land use was shown as recreational (park). In the counter affidavit filed on behalf of respondent No.1, it was pleaded that mere allotment of land for construction of temple did not give any cause to the writ petitioners to challenge order dated 30.3.2010 and as and when an application is made for construction of temple, respondent No.1 will consider whether land can be used for a purpose other than the one specified in the Zonal Development Plan. In the affidavit filed on behalf of respondent No.3, it was pleaded that as per the Zonal Development Plan, land coming under the Residential Use Zone can be utilized for construction of Kalyana Mandapams without creating any noise pollution, function halls/public assembly halls, religious center etc. and in the absence of any bar in the Zonal Development Plan, no exception can be taken to the permission granted by respondent No.1 for construction of temple. 8. The Division Bench of the High Court noticed that as per the approved Zonal Development Plan, Town Survey No.2/3 is earmarked for recreational use (park) and held that unless the State Government relaxes the use of land, respondent No.1 cannot grant permission for construction of temple. However, the appellants’ prayer for quashing order dated 30.3.2010 was declined by making the following observations: “Once the land was earmarked for the parks/recreational use in the modification of the Master Plan of Tenali Town as approved in G.O.Ms.No.689, dated 30.12.2006, unless the Government relaxes the use of the land for any other purpose than the one notified, the first respondent cannot grant permission for construction of temple if it is prohibited under G.O.Ms.No.689, dated 30.12.2006. Mere allotment of the land for construction of temple will not give rise any cause of action unless permission for construction of temple is accorded by the first respondent on submitting the plans. As and when the plans are submitted with specific proposal for construction of temple, the first respondent is under obligation to consider the prohibition contained under the modified Master Plan issued in G.O.Ms.No.689, dated 30.12.2006. It is under obligation to invite the objections from the residents of the locality including the petitioners and consider the said objections before granting permission. If such construction of temple is prohibited, it is also open for the third respondent to move the Government by filing an application seeking relaxation of the land use and if any relaxation is granted by the Government, it can make its application to the first respondent.” (emphasis supplied) 9. Learned counsel for the appellants argued that the impugned order is liable to be set aside because the High Court disposed of the writ petition by erroneously assuming that order dated 30.3.2010 was only for allotment of land to respondent No.3. Learned counsel emphasized that in the approved Zonal Development Plan, land use of Town Survey No.2/3 has been shown as recreational (park) and argued that respondent No.1 committed a jurisdictional error by sanctioning construction of temple at the site without even making an effort to find out whether the site belongs to respondent No.3.
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